Breadcrumbs

EC-COI-89-32

November 9, 1989

FACTS:

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You are a part-time, special police officer in a Town (Town).Special police officers have been designated special municipalemployee positions by the Board of Selectmen. You are appointedto the special police officer position each year by the Board ofSelectmen and you serve in that position approximately a maximumof four hours per month or not more than twenty days in a year.

Recently you opened your own garage in Town specializing intruck and heavy equipment repair as well as customizing fourwheel-drive vehicles. You are the sole owner and employee of thegarage. Your business owns the only towing truck in Town.Occasionally, you receive calls from the Town to tow vehiclesalthough you state that towing is a very minor part of yourbusiness. If you are unavailable, a wrecker is called fromanother Town. As a special police officer, you are notauthorized to call a wrecker and you may not, in your officialcapacity, call your own tow company nor solicit business for yourcompany. A police sergeant or other officer in charge mustauthorize a call for towing a vehicle according to informationprovided by the Town, you have complied with the requirements ofa s.20(d) exemption.[1] In addition, you repair Town fire trucks.

As a tower of motor vehicles, you are licensed by the stateDepartment of Public Utilities (DPU) as a common carrier of motorvehicles." G.L. c. 159B, s.3(a),(b). DPU sets the maximumallowable rates for towing and storage ordered by the police orother public authority or during snow removals. Id at s.6C ands.6B. You have also filed a business certificate with the TownClerk as is required for anyone doing business under a titleother than the operators real name. G.L. c. 110, s.5.[2]

The Town Police Chief states that the Police Department has noformal policy on the use of tow operators and that no rotationlist is in effect as that type of arrangement has beenunsuccessful. He states there are five tow operators on theDepartment's list and all are located within a ten-mile radius ofthe Town. A tow operator is placed on the Department's list byrequest. There is no application or bid process. According to theChief, the Department generally calls you first since you are theclosest tower. If you are unavailable to do a police tow, thenext company on the list is called. A tower may refuse a policetow, for instance if he has a private tow request. Tow operatorsmay charge more money for private tows. The procedure for towingvehicles requires the patrolman to call the Police Chief who thenauthorizes a tow.

Towing for the State Police is a separate matter. In order todo so, a tow operator must register with the State Police andgenerally guarantee towing availability at all hours of the day.Once you register with the State Police, you would be placed on arotational list for your area and called whenever the needarises.

QUESTIONS:

1. May you continue to be as a Town special police officer inview of your ownership of a garage in Town which has the onlytowing truck in Town?

2. May you repair Town fire trucks?

ANSWERS:

1. Yes, subject to the provisions of s.s.20 and 23 of 268A.

2. Yes, subject to s.20.

DISCUSSION:

As a Town part-time police officer, you have been classifiedas a "special municipal employee" within the meaning of theconflict law, G.L. c. 268A, s.1(n).[3]

Section 20

Section 20 of G.L. c. 268A prohibits a special municipalemployee from having a direct or indirect financial interest in acontract made by any municipal agency of the same town. Thepurpose of this section is to avoid the perception that Townemployees enjoy an "inside track" on Town contracts oremployment.

Despite the general prohibition of s.20, there exists ins.20(c) an exemption which permits you to repair fire trucks.Section 20(c) would exempt you as a special municipal employee ifyour police duties do not include matters concerning the firedepartment and you file a written statement with the Town Clerk'sOffice disclosing your interest in your paid arrangement torepair Town Fire Department vehicles. With respect to your towingvehicles in response to a Town Police Department request,however, the Commission finds that you have a financial interestin a contractual arrangement with your own municipal department,and thus you must comply with the requirements of a s.20(d)exemption.

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The Commission has articulated through established precedent abroad view as to what constitutes a contract for the purposes ofthe conflict law. See, EC-COI-85-5. It is well-settled that theCommission does not require a contract to be formalized inwriting for it to result in a violation of c. 268A. See, EC-COI-89-14; 85-79.[4] The Police Department by virtue of its policepowers is charged with the responsibility of protecting thepublic and ensuring that the Town's public ways are safe. Apolice-ordered vehicle tow is performed at the direction of thePolice Department. The Police Department currently has a list offive tow companies in the area. The companies have submittedtheir names to the Police Department to be placed on the towingcall list. The Department has accepted their services by placingthem on the list. You are one of the companies on the towinglist. You are the sole employee of your garage. You thereforehave an arrangement with the Police Department to provide towingservices. You have a financial interest in that contractualarrangement each time you perform a police-ordered tow. It doesnot matter that the source of your compensation comes from theprivate vehicle owner. See, Quinn v. State Ethics Commission, 401Mass. 210 (1987).

The fact that you are licensed by DPU, a state agency, to be atower, does not affect our conclusion under s.20. Yourcontractual arrangement with the Police Department to providetowing services is not a license from the Town. Rather, your DPUlicense allows you to engage in a contractual arrangement withthe Police Department as well as to perform towing for privateparties.

Therefore, in order to avoid a violation of s.20 by virtue ofyour police position and your towing agreement with the PoliceDepartment, s.20(d) requires you to file a written disclosurewith the Town Clerk's office, stating your garage's financialinterest in towing for the Town, and the Selectmen must approveyour exemption from s.20. According to the Town, you havecomplied with this requirement.

Section 23

Section 23, the standards of conduct provision, is asupplemental section to the other provisions of c. 268A. Section23(b)(2) prohibits you from using your official position tosecure for yourself or someone else, any unwarranted privilege orexemption of substantial value which is not available tosimilarly situated individuals. An item of substantial value hasbeen interpreted by the Commission as anything worth $50 ormore.[5] For example, this section would prohibit you fromconducting any private business during the hours you serve as aTown police officer. Similarly, this section would prohibit yourofficial endorsement of your garage either by handing out yourgarage's business card to individuals with whom you have officialdealings or by making recommendations to such individuals. See,EC-COI-81-87; 84-127.

Section 23(b)(3) prohibits you from engaging in activity whichwould cause a reasonable person to believe that your officialactions are unduly or improperly influenced because of thekinship, rank, position or undue influence of any person. Inother words, this subsection prohibits you from engaging inactivity creating the appearance of a conflict of interest. Forexample, if you have official dealings with a private client ofyour garage, issues under s.23 may be raised where it couldreasonably appear that your official actions may be improperlyinfluenced by that prior business relationship. An exemption fromthis section is available to you, however, if you disclose inwriting to your appointing authority the facts of the situationcreating the appearance of a conflict. This disclosure should bemade in advance of your activity proscribed by this section.

Furthermore, you should be aware that s.23(e) provides thatadditional standards of conduct may be promulgated by your Townor Town department. See, EC-COI-85-12; 88-17. You should checkwith your town counsel to determine whether any such rules orregulations could apply to your circumstances.[6]

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[1] The exemption in G.L. c. 268A, s.20(d) applies to

". . . a special municipal employee who files with the clerkof the city or town a statement making full disclosure of hisinterest and the interests of his immediate family in thecontract, if the city council or board of aldermen, if there isno city council, or the board of selectmen approve the exemptionof his interest from this section. . ."

[2] You are aware of no other rules or regulations pertaining tothe operation of your towing business. For the purposes of thisopinion, the application of G.L. c. 40, s.22D would not changeany conclusions contained herein. Upon acceptance of c. 40,s.22D, a municipality may authorize its police officers either totow vehicles or to have the towing performed by an independentcontractor.

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[3] You also would be considered a "municipal employee" inyour performing towing services for the Town since you would be aperson performing services for a municipal agency by appointment,or contract of hire or engagement, and serving with compensationon a part-time or intermittent basis. The definition of a"municipal employee" has broad application. See, Buss, TheMassachusetts Conflict of Interest Law: An Analysis, 45 B.U. LawRev. 299,311 (1965).

[4] This analysis is distinguishable from Central Tow Co., Inc.v. City of Boston, 371 Mass. 341 (1976). Central Tow involved atowing company which sought recovery of unpaid towing and storagefees from the City where owners failed to claim their vehicleswhich had been towed under police order. The court held that theCity bad no contractual obligation to pay such fees where theyhad not been expressly contracted for in accordance with therelevant statutes. This decision did not reach the issue of thetower's authorization to collect towing fees from the owner ofthe towed vehicle.

[5] See, {Commission Advisory No. 8}.

[6] Under the facts you have presented, the conduct of yourtowing business does not present inherently incompatibleemployment with your part-time police position under s.23(b)(1).Your special police duties do not include towing assignments, norare you working for a company which has substantial needs for thepolice department's services. Compare, In the Matter of JohnDeLeire, 1985 SEC 236.